COVID 19 EMPLOYER

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 12 Things EMPLOYERS Must Know About JobKeeper Today.

  1. Your business needs to be suffering a minimum reduction of 30% less turnover when compared to one year ago (for at least one month) for businesses with an annual turnover of less than $1 billion. There are thresholds for larger businesses, charities and not-for-profits.

  2. You need to pay in advance, impacting on your cashflow, and take the risk of your business’s eligibility.  If business picks up or doesn’t drop to the exact extent expected, then you may no longer be eligible or subsidised.

  3. If your business is eligible and you voluntary elect to participate in the JobKeeper scheme, all eligible employees must be covered, including employees who have been stood-down.

  4. If you elect to participate in the JobKeeper scheme, you cannot pick and choose which employees are eligible employees for the scheme, as Discrimination, Adverse Action and other employment laws still apply.

  5. The first JobKeeper period starts on Monday 30 March 2020 and ends on Sunday 12 April 2020. Payments will continue fortnightly, subject to eligibility.

  6. If an eligible JobKeeper employee works or is on paid leave during the pay cycle, superannuation is payable.  Likewise, if the employee is stood-down without pay and no paid leave and only the JobKeeper payment is paid, no superannuation is payable.

  7. If the eligible employee works, the employee’s 1 March 2020 higher ordinary wage is payable over and above the JobKeeper payment, unless the ordinary wage is varied lower with negotiation and consent through a documented, reasonable contractual variation process after seeking advice on the process and having regard for the applicable minimum fair work instrument.   A JobKeeper Stand Down Direction consistent with the consultation, reasonable test and notice obligations under the new April 2020 Fair Work Act 2009. Amendments for a reduced part week or lower hours
    is another alternative to address operational costs akin to a temporary wage or
    salary reduction.

  8. All of the administration costs remain with employers.

  9. ATO JobKeeper rules and obligations are complex and subject to change without notice.

  10. An eligible employee may be excluded from your fortnight retrospective reimbursement, if:

    • The fortnight period includes parental leave pay under Paid Parental Leave Act 2010.

    • The fortnight period includes dad and partner pay under Paid Parental Leave Act 2010.

    • The eligible employee is receiving workers compensation.

  11. As the scheme is retrospective, the risk of non-compliance is the employers alone. For example:

    • If the eligible employee has misled the Employer seeking JobKeeper with two employers.

    • If the eligible employee has misled the Employer and is on JobSeeker.

    • If the eligible employee has misled or misunderstood their entitlement or visa status.

    • If the eligible employee for any reason is not eligible.

    • If the ATO rules change.

  12. The JobKeeper scheme is time limited, and all claims must be paid by 30 September 2021.

The JobKeeper rules will continue to expand and provide clarity over time. For example

a)      It remains likely but not apparent at 13 April 2020, if the JobKeeper subsidy is payable if the eligible employee is on paid leave as indicated by an ATO factsheet but not confirmed by the rules or legislation.

“A person who has been stood down or is on leave is considered to be an employee of their employer under the Fair Work Act 2009 and for the purposes of the JobKeeper payment.”

            Authorised Version Explanatory Statement registered 09/04/2020 see page 13.

b)      It remains unlikely and unclear at 13 April 2020, if the JobKeeper subsidy continues during a notice period after a decision is made to terminate the eligible employee’s employment post 30 March 2020. The subsidisation of and employers termination notice obligations are likely to be the subject of further political debate and maybe an ATO rule change.

The rapid introduction of the provisions may result, in the short term, with more questions than answers.  With benefits for employers, employees and a significant burden for all, JobKeeper will have a lasting impact.

For queries about JobKeeper or any other employment matters, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au.

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved
under professional standards legislation.


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COVID 19 EMPLOYERS

What about Stand Down in Construction

The Government has gone to great lengths to encourage businesses, including construction, to remain open where possible.

A complete frustration of your business model or a significant part of your business model is required for stand down, not merely a slowing of business activity.

I recommend companies should consider

a) stand down,

b) allowing employees to access paid leave or

c) stand down without pay subject to the size/stability of the individual business, with a view to several periods of stand down over the next six months and peak disruption in mid-June 2020.

Business needs to resist using stand down provisions before they are required. The community group think and Facebook comments is out of step with Government and medical advice.

Stopping in March or April will only make the assumed June peak more painful.

Employers need to be consulting with employees now in writing with all available options, including leave, redundancy, reduced hours or stand down.

Other normal workplace laws continue to apply for Employers including WHS, Workers Compensation, National Employment Standards, Modern Awards, Anti-Discrimination (including illness), Adverse Action, Individual Flexibility and Privacy laws.

Workforce Advisory can assist Employers, Managers, and Directors in construction with advice at this difficult time including consultation letters and stand down letters.

For queries about the COVID 19 and Employer obligations or any other employment matters, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Standard Commercial Union Enterprise Agreements.

As a general observation for Employers, commercial union pattern enterprise agreements do not have a stand down provisions to be read in conjunction with the Fair Work Act 2009. Agreements without a provision will operate in accordance with the Act. Employers must check their individual Union Agreement.

QLD

  • Queen’s Wharf Project Agreement

  • CFMEU Union Collective Agreement 2011-2015

  • CFMEU Union Collective Agreement 2018-2019

  • CFMEU Enterprise Agreement 2018-2019

  • Cross River Rail -Civil and Surface Works Greenfields
    Agreement 2019-2023

    • Clause 3.9 Standing Down of Employees

  • CEPU Plumbing Division Mechanical Union Collective Agreement 2015 -2019

    • Clause 25. STANDING DOWN OF EMPLOYEES

NSW

  • On-Site Construction HVAC Workers Enterprise Agreement for NSW & ACT 2014-2017

  • CEPU Plumbing Division NSW Branch Plumbing Enterprise Agreement 2015-2019

  • CEPU Plumbing Division – NSW Branch Mechanical Enterprise Agreement 2015-2019.

  • CEPU Plumbing Division – NSW Branch Mechanical Enterprise Agreement 2019-2023

  • NSW/NFIA Sprinkler Fitting Fire Protection Union
    Enterprise Agreement NSW & ACT 2015 – 2019

    • Clause 35.4 STANDING DOWN OF EMPLOYEES

  • CFMEU Collective Agreement 2017-2018

  • CFMEU Collective Agreement 2Ol9-2O22

VIC-

  • CFMEU (VIC) Civil and Infrastructure Enterprise Agreement 2019

  • CFMEU (Victoria) Enterprise Agreement 2019-2020

  • CEPU – Plumbing Division (Vic) Fire Protection Agreement Victoria 2015-2019.

  • Air Con – CEPU Plumbing Division (Vic) Enterprise Agreement 2016 -2019

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Our Firm

As a boutique firm, our Practice Director has extensive experience in assisting employers across Australia with a focus on Queensland and New South Wales.  Our firm specialises on the building industry (construction, demolition, piling, air conditioning, plumbing, fire, concrete pumping and HVAC industries).  We also regularly act for employers in the finance, education, government, property, medical, oil & gas and hospitality industries.

This depth of experience makes us well placed to assist you in managing your issues.

JobKeeper Links

STAND DOWN – Building and Construction General On-site Award 2010

Stand Down provisions for Award based construction employees are subject to the provisions of the Fair Work Act 2009 as the Building and Construction General On-site Award 2010 does not have a Stand Down provision at 22 March 2020. Employment contracts or enterprise agreements may have additional obligations.

It’s a challenging time for the Fair Work Act 2009 and we
anticipate various employer or union applicants to the Fair Work Commission for variations to Modern Awards or Enterprise Agreements.

The Fair Work Commission has moved on its own application to introduce two weeks’ unpaid “pandemic leave” for millions of award-covered workers, as Covid19 continues.

It is also considering, in a decision out next week, that award-covered employees can take annual leave at half the rate of pay.

ATO HELP

We work with small businesses employers and wanted to say thank you to the Australian Government, the ATO and all Australians for supporting small business.

ATO Fact Sheet- Cash flow assistance for businesses

#smallbusinesses #employers

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